When prosecutors 'take a dive' — the purported ‘error’ in Richard Glossip's case 

Earlier this month, Amherst College Professor Austin Sarat criticized Supreme Court Justices Clarence Thomas and Samuel Alito for asking pointed questions about death row inmate Richard Glossip’s claim that his 2004 murder conviction should be overturned. After all, Oklahoma’s new attorney general, Gentner Drummond, supports Glossip’s contention that the trial prosecutors withheld evidence.  

This popular narrative, however, is a manufactured and bogus claim. The prosecutors never withheld evidence. The case’s true lesson is about the emerging dangers of prosecutors confessing phantom “errors,” and sometimes even throwing cases on purpose. 

In 1988, an Oklahoma jury convicted Glossip of hiring his friend, Justin Sneed, to murder Barry Van Treese. Following a reversal for ineffective assistance of counsel, a jury again convicted Glossip in 2004. He was again sentenced to death. 

After nearly two decades of appeals, Glossip now argues that the trial prosecutors hid evidence that Sneed was taking lithium for a mental disorder under the direction of a psychiatrist — evidence that his attorneys could have potentially used to impeach Sneed as a witness.  

Glossip’s argument is based on just four words in one prosecutor’s notes during a pre-trial interview of Sneed. The words read: “on Lithium?” And “Dr. Trumpet?” 

Drummond has joined Glossip in concluding that these four words mean the prosecutor knew about Sneed’s possible psychiatric prescription. But this ignores the important context surrounding these few words. In truth, the prosecutor was simply writing down what Sneed said in recounting his questioning by defense investigators. Hence the two question marks and the surrounding information about the defense team that is contained in the notes. 

Surprisingly, Drummond never directly asked the prosecutor what her notes meant. Even more surprisingly, Drummond did not disclose to the Supreme Court the other prosecutor’s notes of the same interview.

Those notes directly record Sneed recounting being “visited by 2 women who said they rep[resented] Glossip.” Thus, as I explained in my amicus brief on behalf of the Van Treese family, the prosecutors’ notes cannot possibly reflect information withheld from the defense. Rather, the notes show them writing down information about what the defense team had asked Sneed.

In a letter accompanying my brief, both prosecutors state specifically that their notes merely reflected that Sneed was relating information the defense already possessed. Contrary to Sarat’s claim that prosecutors “withheld evidence” from the defense, the prosecutors only wrote down evidence that the defense already had.

The Glossip case mirrors an unfortunate trend. Recently other prosecutors have also confessed phantom or illusory “errors.” Earlier this year, the Third Circuit unanimously rejected Philadelphia District Attorney Larry Krasner’s confession of error in a death penalty case. The circuit affirmed a trial court order sanctioning the DA’s Office for failing to fully investigate the purported error and for misrepresenting that the office had properly informed the victim’s family what was happening.

Another example comes from a Texas death penalty case, in which a new Travis County DA was elected on an anti-death penalty platform. Just a few days later, the DA’s Office confessed error regarding Areli Escobar’s capital sentence for the rape and murder of Bianca Maldonado, his 17-year-old neighbor. The significance of that local prosecutor’s dubious admission remains pending before the Supreme Court to resolve, after it decides Glossip's case.

A final example comes from Los Angeles, where George Gascón was elected district attorney with the help of significant outside campaign money. He then set about reversing capital judgments in the county by systematically conceding error regardless of the facts of particular cases. Gascón is running for reelection in November. 

What appears to be motivating prosecutors to “take a dive” in these cases is that, at least in their jurisdictions, it’s good politics. But enmeshing victims' families in unfounded litigation based on bogus errors is cruel. And the larger casualty is public confidence in the criminal justice system. The public sees headlines about prosecutors admitting errors and wrongly assumes that the system can’t be trusted to reach accurate results. 

Fortunately, at least a partial remedy is at hand in Glossip and other cases subject to judicial review. The U.S. Supreme Court has long held that “it is the uniform practice of this court to conduct its own examination of the record in all cases where the Federal Government or a State confesses that a conviction has been erroneously obtained.” Far from being blameworthy, Justices Thomas and Alito were just taking seriously their obligation to review the facts when they asked tough questions.

The Supreme Court and, more broadly, courts throughout the country should closely scrutinize prosecutors’ confessions of “error” to ensure they are true. And in Glossip, where the alleged error is simply concocted, the court should affirm Glossip’s sentence. The victim’s family deserves some small measure of closure, more than 10,139 days after Barry Van Treese’s murder. 

Paul Cassell is a former federal judge and a professor of criminal law at the University of Utah’s S.J. Quinney College of Law. He is representing the Van Treese family pro bono in the Glossip case.